NADV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1535

FEDERAL COURT OF AUSTRALIA

NADV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1535 NADV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1180 OF 2002 LINDGREN J 5 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1180 OF 2002

BETWEEN: NADV

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 5 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1180 OF 2002

BETWEEN: NADV

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 5 DECEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 By her application filed on 11 November 2002 the applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal"), which apparently affirmed a decision of a delegate of the respondent Minister ("the Minister") refusing the applicant a protection visa. 2 Upon the proceeding being called this morning the applicant has not appeared. This is the return date of the application. 3 In her application to this Court, the applicant gave her address as 11/269 Riley Street, Surry Hills NSW 2010. The solicitor for the Minister has tendered a copy of a letter from his firm to the applicant at that address dated 14 November 2002, in which it was stated: "Please note that if you do not attend the scheduled directions hearing in your matter we will seek orders from the Court under Order 10, rule 3(2) of the Federal Court Rules to have your application dismissed and for you to pay the Minister's legal costs." 4 The applicant wrote to the Registry of the Court on 29 November 2002 stating that she understood that the Court was "running a legal assistance scheme for those who are acting by themselves". Her letter asked that the Court arrange for a lawyer to represent her on the hearing. The letter concluded: "Please contact me at the above address if more information is required." (my emphasis) The "above address" was given as 11/265 Riley Street, Surry Hills NSW 2010, rather than 11/269 Riley Street as was noted on the application. 5 An officer in the Registry replied on behalf of the District Registrar on 4 December 2002, which is, of course, only yesterday, enclosing information about the pilot legal advice scheme. The letter stated: "The scheme offers advice only and does not cover the cost of a Lawyer appearing at the hearing you would need to make separate arrangements for further legal representation." This reply letter was addressed to the applicant at the address she had given on her letter, 11/265 Riley Street. Of course, I do not know whether the applicant has yet received that letter. 6 Notwithstanding what I have said in the last paragraph, I think it appropriate to grant the Minister's application for dismissal of the proceeding. The form of application made it clear to the applicant, as well as to the Minister, that the application might be heard this morning or directions might be given this morning for the further conduct of the proceeding. Accordingly, the Court's power under either O 10 r 3(2) or O 32 r 2(1)(c) of the Federal Court Rules ("the Rules") is available. 7 In relation to the question of discretion, I note that the applicant did not appear before the Tribunal. I further note that her affidavit in support of her application to this Court states only: "I disagree with the Refugee Review Tribunal decision to refuse my Protection Visa and I am applying for a Court order for that decision to be quashed or set aside as the Tribunal power has been exercised improperly without regard to the merits of my case." Finally, I note that the Court will have power under O 35 r 7(2)(a) of the Rules to set aside the order of dismissal upon application being made and cause being shown.